In many child sexual abuse cases, the child victim is either unable or unwilling to testify at a trial. This causes many problems for Prosecutors as the primary evidence against the alleged perpetrator is the child victim’s testimony. The child victim has usually told the story to other adults such as police officers, parents, hospital employees and child advocacy interviewer, but all of these statements are considered hearsay statements. In order to attempt to admit into evidence some of these hearsay statements, Prosecutors in Illinois may motion for a 115-10 hearing.
The Illinois statute (725 ILCS 5/115-10) states:
(a) In a prosecution for a physical or sexual act perpetrated upon or against a child under the age of 13, or a person who was a moderately, severely, or profoundly mentally retarded person… the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by the victim of an out of court statement made by the victim that he or she complained of such act to another; and
(2) testimony of an out of court statement made by the victim describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual or physical act against that victim.
However, in light of the Supreme Court rulings of Crawford v. Washington and Davis v. Washington where testimonial hearsay is not admissible due to the Confrontation Clause of the Sixth Amendment, there are questions regarding the constitutionality of the Illinois code and leaves judges questioning what statements may be testimonial in nature. Judge Daniel B. Shanes addresses these issues and discusses the history of the confrontation clause both in America and in Illinois through his article Confronting Testimonial Hearsay: Understanding the New Confrontation Clause, 40 Loy. U. Chi. L. J. 879 (2009) (pdf here).
Judge Shanes provides a good analysis of the confrontation clause for attorneys and judges. The article breaks down the most recent court decisions and how to better understand whether a statement is considered testimonial in nature and admitted hearsay testimony. Judge Shanes’ article focuses on some Illinois cases, primarily child sexual abuse cases and how the Illinois Courts are analyzing testimonial hearsay.
In the case of In re Rolandis G., 352 Ill. App. 3d 776 (2d Dist. 2004), Illinois has recognized police and forensic interviewers from advocacy centers as being testimonial in nature and therefore inadmissible. This may be burdensome to the prosecution’s case in the future as forensic interviewers are used by police, state’s attorneys, and child protection service agencies to interview the child victim once and not re-traumatize the child victim by having to tell the story multiple times. This also may only leave the statements made to the child’s relatives or other friends and possibly hospital personnel as admissible hearsay in prosecuting child sexual abuse cases in Illinois.
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